Mitan v. Osborn et al

Filing 90

ORDERED that Defendants' Motion for Sanctions 85 is granted. Pursuant to Fed. R. Civ. P. 37(b)(2)(A)(v), plaintiff's amended complaint is dismissed with prejudice. It is further ORDERED that to the extent that plaintiff has not yet paid James Condry, plaintiff is directed to pay his costs of the mediation before Mr. Condry in the amount of $500.00. Signed on 9/23/2013 by Magistrate Judge Sarah W. Hays. (Bliss, Sue)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION

KEITH J. MITAN,
Plaintiff,
v.
DONNA OSBORN,
COMMUNITY PUBLISHERS, INC., and
OZARKS NEWSSTAND,
Defendants.

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Case No. 10-03207-CV-S-SWH

ORDER
Pending before the Court is Defendants’ Motion for Sanctions (doc. #85), in which
defendants seek dismissal of this action pursuant to Fed. R. Civ. P. 37(b)(2)(A)(v) as a sanction
for plaintiff’s “willful failure to obey repeated orders of this Court to provide discovery.

(Doc.

#85 at 1) In response, plaintiff contends that because it is clear that defendants will not be able
to prevail at trial, defendants are determined to prevent the Court from reaching the merits of this
action.

(Doc. #87 at 2)

Plaintiff also contends that he has produced 1,000 documents and

submitted eight responses to defendants’ requests for production of documents. (Doc. #87 at 5)
For the reasons set forth herein, the Court finds that plaintiff willfully and in bad faith failed to
comply with discovery orders of the Court. Accordingly, plaintiffs’ complaint is dismissed with
prejudice.
I.

PROCEDURAL BACKGROUND

On May 27, 2010, plaintiff Keith Mitan, appearing pro se, filed a one-count complaint
alleging defamation against the defendants on behalf of himself and the estate of Frank Mitan as

the result of an article published on May 28, 2008, in the Christian County Headliner News
entitled Mitan Used Aliases in Alleged Business Scams. (Doc. #1) Defendants filed a motion to
dismiss or in the alternative for summary judgment.

(Doc. #8) In addition to the substantive

arguments contained in the motion, the motion also claimed that plaintiff Keith Mitan was
engaged in the unauthorized practice of law in attempting to pursue a claim on behalf of the
estate of Frank Mitan. (Doc. #9 at 32-35)
In response to the defendants’ motion, plaintiff Keith Mitan filed an amended complaint
alleging the same defamation claim, but solely on his own behalf. (Doc. #13) Defendants then
filed a second motion to dismiss and/or for summary judgment claiming entitlement to summary
judgment based on the fair report privilege.1 The Court denied defendants’ motion for summary
judgment finding that the fifty-nine supporting exhibits did not “support a finding that the
statements at issue in this case were an accurate and complete report of or a fair abridgement of
the proceedings documented in the exhibits” and that “there had been no showing as to which, if
any, documents defendants or their staff reviewed prior to authoring the article.” (Doc. #24 at
10, 14)
On May 29, 2012, defendants filed a motion seeking to extend the discovery deadline for
the limited purpose of obtaining discovery from plaintiff. (Doc. #32) In that motion, counsel for
defendants noted that they had “timely complied with all of Plaintiff’s discovery requests in this
case, including answering interrogatories and producing more than 1,000 pages of documents.”
(Doc. #32 at 1) However, as of May 29, 2012, plaintiff had not responded to defendants’ written

1

The fair report privilege allows the press to publish accounts of official proceedings or reports
even when they contain defamatory statements as long as the article is a fair and accurate report
or abridgement. See Klein v. Victor, 903 F. Supp. 1327, 1336 (E.D. Mo. 1995); Englezos v.
Newspress & Gazette Co., 980 S.W.2d 25, 32 (Mo. Ct. App. 1998).
2

discovery requests served on April 24, 2012, nor had plaintiff responded to requests for dates for
his deposition.2 (Doc. #32 at 2)
Plaintiff objected to the notice sent by defendants scheduling his deposition and also
indicated he was unavailable to confer by phone with opposing counsel concerning his
deposition prior to the date set for the close of discovery.3 (See doc. #32 at 2-3) On June 6,
2012, the Court scheduled a discovery conference for June 13, 2012. (Doc. #33) On June 11,
2012, plaintiff filed a Motion for Protective Order (doc. #34) claiming that interrogatories served
on April 24 contained more than 25 interrogatories, were not limited to the proper time period
and sought information which was not reasonably calculated to lead to the discovery of
admissible evidence.

Plaintiff also opposed the defendants’ motion to extend the discovery

deadline for the limited purpose of obtaining discovery from plaintiff on the basis that defendants
had not agreed to engage in mediation nor had they filed the appropriate paperwork to opt out of
the Court’s early assessment program.4 (Doc. #36)
The Court denied the Motion for Protective Order on the grounds that it had been filed
prior to plaintiff complying with that portion of Local Rule 37.1 that requires a conference with
the Court. (Doc. #37)

2

Defendants’ subsequent filings in connection with the motion for sanctions reflect that plaintiff
certified that responses to the interrogatories and requests for production of documents were
mailed to defense counsel on May 29, 2012. Local Rule 26.4 provides that interrogatories and
document requests and responses thereto are not to be filed with the Court, but a certificate of
service shall be filed. A certificate of service was not filed by plaintiff in connection with his
responses to these discovery requests.
3
Local Rule 37.1(a)(1) and Paragraph 54 of the Scheduling Order provide that no motion to
compel discovery can be filed until counsel for the parties have first conferred by telephone
about the dispute.
4
A mediation was held before neutral James Condry on July 24, 2012. Plaintiff had expressed to
defendants a preference to use the services of Mr. Condry. Thereafter, Mr. Condry contacted the
Court to advise that despite writing plaintiff on August 27, September 28, and December 11,
2012, plaintiff refused to pay his portion of the bill for Mr. Condry’s mediation services.
3

A. Telephone Discovery Conference on June 13, 2012
Thereafter, the Court held a discovery conference to review specific interrogatories and
requests for production of documents with both parties.

In determining what information would

be relevant, plaintiff indicated that he was not seeking damages for lost income and that his
damage claim was based only on damage to reputation.

(Doc. #40 at 6) The Court clarified

plaintiff’s position by asking: “But no loss of income associated with the damage to reputation?”
and plaintiff responded: “Correct.” (Doc. #40 at 6)
The first interrogatory and request for production of documents discussed by the Court
and the parties on June 13 dealt with plaintiff’s efforts to have his Michigan law license
reinstated after it was suspended in 2007.

Plaintiff had initially taken the position that this

interrogatory was not relevant, but later concluded that if reinstatement had been denied, it might
be relevant.

However, plaintiff told defense counsel that reinstatement had not been denied.

(Doc. #40 at 6-7)

During the conference, plaintiff explained that, in Michigan, an Attorney

Discipline Board (hereinafter “Disciplinary Board”) is the deciding party and handles the
application for reinstatement.

(Doc. #40 at 8) The Disciplinary Board asked for comments on

plaintiff’s reinstatement request via a publication in the state bar journal.

Plaintiff indicated that

he did not know whether they received comments. (Doc. #40 at 8)
During this discussion, counsel for defendants agreed that rather than answering an
interrogatory, plaintiff could respond to the accompanying request for production of documents.
Mr. Rhodes, defense counsel, indicated that “[i]f he could simply produce his application to
reinstatement and any correspondence he’s received to or from the commission,5 he would not

5

Although plaintiff stated that a Disciplinary Board was handling his application for
reinstatement, based upon the discussions throughout the course of discovery and documents
produced by defendants as part of the sanction motion, it is clear that a grievance commission
4

have to answer the more specific information, because it sounds to me that everything he knows
is in these documents.” (Doc. #40 at 9) The Court then made inquiry of plaintiff:
THE COURT: Are you willing to do that?
MR. MITAN: Yes.
THE COURT: Okay. So, in response to Document Request Number 1,
you’re going to submit to Mr. Rhodes the application for reinstatement to the
Michigan grievance committee and correspondence to and from the grievance
commission. And how long will it take you to do that?
MR. MITAN: Oh, I could probably do that within a week. …
(Doc. #40 at 9)

Following further discussion, defendants agreed to redraft certain of the

interrogatories and document requests to address plaintiff’s objections.

The Court gave

defendants until June 20, 2012,6 to submit the revised interrogatories and plaintiff until July 11,
2012, in which to respond.
B. Telephone Discovery Conference on July 20, 2012
Although plaintiff was given until July 11, 2012, in which to respond to the revised
discovery requests, the postmark on the plaintiff’s responses was dated July 16, 2012. (Doc. #50
at 3) At the earlier discovery conference, it had been agreed that rather than responding to an
interrogatory about plaintiff’s efforts to have his law license reinstated, he would provide
documents concerning that effort.

(Doc. #50 at 3) However, in the information submitted to

opposing counsel on July 16, 2012, plaintiff produced only the cover letter to the bar submitting
his petition for reinstatement, but none of the supporting documents.

(Doc. #50 at 3) By the

time of the telephone conference on Friday, July 20, 2012, counsel for the defendants had also
appointed by the Disciplinary Board and an attorney for the grievance commission were
involved in conducting hearings and evaluating the petition for reinstatement.
6
Given the short time period for the completion of discovery, defendants revised the
interrogatories and document requests and resubmitted them to plaintiff on June 13, 2012. (Doc.
#50 at 3)
5

learned that more than 400 pages of documents had been provided to plaintiff by the Disciplinary
Board in connection with plaintiff’s reinstatement claims.7
At the time of the telephone conference, this material had not been produced by plaintiff.
(Doc. #50 at 3-4)

Defense counsel had been attempting to obtain this information prior to

plaintiff’s deposition, which was set for Monday, July 23, 2012, and the Court noted it did not
know how plaintiff could get this information to defendants before the Monday deposition.
(Doc. #50 at 6) Further, when the Court tried to ascertain from plaintiff exactly what had been
produced to him, plaintiff indicated he was not sure and stated, “I didn’t ever even actually went
through that entire 400 pages.”8

(Doc. #50 at 8)

The Court reiterated that plaintiff was to

provide to defendants the copy of his petition for reinstatement and any correspondence from the
bar committee including information that had been provided to them. (Doc. #50 at 5, 6)
Additionally, defendants had requested information about the business relationship
between plaintiff and the other members of his family, including those that were named in the
news report. (Doc. #50 at 12-13) During the initial phone conference on June 13, 2012, plaintiff
objected to the requests for financial information on the basis that the requests were too vague
and covered too broad a time period.9 In response to narrowed requests, plaintiff raised for the
first time a claim of attorney-client privilege. (Doc. #50 at 12-15)
During the July 20, 2012, conference, plaintiff also advised the Court and opposing
counsel that the United States Postal Inspection Service had seized a “bunch of my documents.”
(Doc. #50 at 16-18) The Court pointed out that in the prior discovery conference at no time had
A proof of service dated May 8, 2012, indicated that a copy of the grievance administrator’s
reinstatement report was served on petitioner along with all of the accompanying exhibits via
regular and certified mail to two different addresses in Michigan. (See doc. #52 at 21)
8
The Court repeatedly attempted to ascertain what documents had been turned over to plaintiff by
the Disciplinary Board. (See doc. #50 at 7-10)
9
See discussion at doc. #40 at 16-25.
7

6

plaintiff indicated he would be unable to produce documents prior to 2009 because of their
unavailability. (Doc. #50 at 24)
The parties were advised to proceed with the scheduled depositions and mediation with
the understanding that the time for completing depositions would be held open until all discovery
had been produced.

Given the extent of the ongoing discovery dispute, an in-person discovery

conference was set for August 17, 2012.
C. In-Person Discovery Conference on August 17, 2012
Between July 20, 2012 and August 17, 2012, plaintiff produced no additional documents
despite his indication during the July 20, 2012, conference that he would provide the petition for
reinstatement as well as correspondence from the grievance committee.10 (Doc. #56 at 2) Thus,
this issue was again addressed during the August 17, 2012, conference. At that time, the Court
directed plaintiff to produce all records which he had sent to or received from the grievance
committee.
THE COURT: The Court indicated it wanted those records produced.
And if I didn’t indicate that then, I’m indicating that now.
MR. MITAN: Yes, Your Honor.
(Doc. #56 at 13)(emphasis added)
THE COURT: I don’t think -- I’m going to go back and look, but I don’t
know that I really had to clarify anything today. I mean, I think my ruling should
have been very, very clear. When I was limiting it time-wise, I was limiting what
it was that you were going to have to do in terms of searching your records.
MR. MITAN: Your Honor, this Attorney Grievance Commission
materials -- originally I had a -- before -- we had a telephone conference before
we talked to the Court. And I told Mr. Rhodes I didn’t think it was relevant. And
Mr. Mitan indicated that “[s]omehow the petition did not get included and the cover letter did.
And I did indicate to Mr. Rhodes that I would look for it. I did find it and I am prepared to give
it to him as I indicated I would.” (Doc. #50 at 5) “I also appreciate the Court giving us this time
so we can get this straightened out before next week …” (Doc. #50 at 5)
10

7

Mr. Rhodes said, well, I do think it’s relevant if they denied your petition, because
I want to know the basis that they denied your petition. And I said, okay, fine.
And I supplemented right before the first telephone conference and indicated the
petition had not been denied. Mr. Rhodes then changed his position and said it’s
relevant because he wants to see what I filed. And then we got into somehow
about correspondence. And the thing keeps expanding, expanding, expanding. I
don’t -- I mean, I’ll certainly do it, and I understand that’s our ruling, but I don’t - I mean, the relevance of this to the facts in this case is non-existent. But I –
THE COURT: You know what? In the amount of time that we have
spent with our various telephone conference and here today about it, you probably
could have produced it several times over.
MR. MITAN: Agreed, Your Honor.
THE COURT:
So, what I’m directing you to produce is the
communication from the Attorney Grievance Committee or the bar, I mean,
whatever. What I don’t want to have is, I mean, it seems to me that people
are parsing their words. It ought to be very clear. You filed a Petition for
Reinstatement. There was an investigation. Documents were gathered. It’s
clear that you’ve been provided with copies of those. I want you to produce
that file to Mr. Rhodes.
MR. MITAN: Yes, Your Honor.
THE COURT: Without you going through and saying, oh, I don’t think
this is relevant or I think you have this or I think this is outside the Court’s time
period. The Court’s time periods dealt with what you had to do in terms of
searching your records. It had nothing to do with a grievance file provided to you
by this bar committee.
MR. MITAN: I understand, Your Honor. And I don’t want to argue with
the Court. But the basis that the Court had originally set the time periods was
because it had made some ruling on relevance. And that was my –
THE COURT: Mr. Mitan.
MR. MITAN: Yes.
THE COURT: This file needs to be produced.
MR. MITAN: Got it, Your Honor.
THE COURT: In its entirety.
MR. MITAN: Yes, Your Honor.
8

(Doc. #56 at 15-16)(emphasis added)
THE COURT: We’ve had enough problems with discovery in this case
that I just want that entire file produced to him.
MR. MITAN: Yes, Your Honor. I would like then, I guess, two weeks to
do that.
MR. RHODES: That’s fine, Your Honor.
THE COURT: All right. And so today is August 17 th . You will have that
complete file in the mail to him by August 31 st .
MR. MITAN: Yes, Your Honor.
(Doc. #56 at 17-18) Thus, plaintiff was given a deadline of August 31, 2012, for production of
documents responsive to document request no. 1.
During this conference, the Court also discussed plaintiff’s responses to revised
document request nos. 15, 16 and 17,11 and plaintiff’s claim that the only documents he
possessed relating to these requests were in the possession of the United States Postal Inspection
Service. (Doc. #50 at 34) Prior to the August 17, 2012, conference, plaintiff filed a copy of a
search warrant inventory listing materials seized by the Postal Inspection Service on October 1,
2009. (See doc. #53-3 at 13) This document reflects that on October 1, 2009, various items
were seized from 3230 Reba Court in Bloomington, Indiana, Deckard Homes.
advised the Court that this was a vacant house.

(Id.) Plaintiff

Plaintiff told the Court that although plaintiff

was a Michigan lawyer with offices in Michigan prior to his suspension, after his suspension
plaintiff placed his documents in storage in the vacant house of which Mitan Estates, Inc. was the
“vendee.”

(Doc. #56 at 38-42)

When asked whether items on the inventory such as fifteen

11

Defendants’ Revised First Request for Production of Documents to Plaintiff is doc. #85-10 and
plaintiff’s response thereto is doc. #85-12.
9

boxes of videotapes were his, plaintiff stated: “Those may have been. These are probably my
brothers.” (Doc. #56 at 41-42)
II.

APPLICABLE LEGAL STANDARDS

Defendants seek the sanction of dismissal pursuant to Fed. R. Civ. P. 37(b)(2)(A)(v) for
plaintiff’s failure to provide reinstatement documents, settlement agreements, and financial
records during the discovery process. (Doc. #86) Rule 37(b)(2)(A)(v) provides in part:
(b)

Failure to Comply with a Court Order.
***
(2)

Sanctions in the District Where the Action Is Pending.

(A)
For Not Obeying a Discovery Order. If a party or a party’s
officer, director, or managing agent—or a witness designated under Rule
30(b)(6) or 31(a)(4)—fails to obey an order to provide or permit
discovery, including an order under Rule 26(f), 35, or 37(a), the court
where the action is pending may issue further just orders. They may
include the following:
***
(v)

dismissing the action or proceeding in whole or in

part;
Under this section, the Court may impose sanctions for discovery violations, including dismissal
of the action. The Eighth Circuit allows dismissal to be considered as a sanction only if there is:
“(1) an order compelling discovery; (2) a willful violation of that order; and (3) prejudice to the
other party.” Keefer v. Provident Life & Acc. Ins. Co., 238 F.3d 937, 940 (8th Cir. 2000)(citing
Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000)). Although a district court need not
impose the least onerous sanction, normally fairness requires it to consider whether a lesser
sanction is available or appropriate before dismissing a case with prejudice.
F.3d at 941.

See Keefer, 238

However, if the facts show both willful misconduct and bad faith, the court “need

10

not investigate the propriety of a less extreme sanction.” Everyday Learning Corp. v. Larson,
242 F.3d 815, 818 (8th Cir. 2001). When the record demonstrates a willful and bad faith abuse of
discovery and the non-cooperating party could not be unfairly surprised by the action, no hearing
is necessary before sanctions are imposed. See Chrysler Corp. v. Carey, 186 F.3d 1016, 1022
(8th Cir. 1999).
A. Reinstatement Records
Plaintiff’s response to that portion of defendants’ Motion for Sanctions which addresses
his failure to produce records from the grievance committee is illustrative of plaintiff’s approach
to the discovery process.

Plaintiff contends that the Court never addressed Document Request

No. 1 (the reinstatement records) in its Order of October 26, 2012, nor did defendants raise it in
their Motion to Compel. (Doc. #87 at 7) According to plaintiff, production of these documents
was discussed during the August 17, 2012, hearing. (Doc. #87 at 7) However, plaintiff contends
that while the Court indicated that the transcript of the October 26, 2012, hearing constituted an
Order, it never indicated that the August 17, 2012 transcript constituted an Order and plaintiff
was never given a copy of the August 17, 2012 transcript. (Doc. #87 at 7)
The Procedural Background set forth above tracks the progress of discovery on the
reinstatement records.

On June 13, 2012, plaintiff agreed to produce these records “within a

week.” (Supra at 5) During the July 20, 2012, telephone conference, the Court directed plaintiff
to provide a copy of his petition for reinstatement and any correspondence to or from the
grievance committee.

(Supra at 6) During the in-person conference on August 17, 2012, the

Court again directed plaintiff to produce the documents—in fact the Court indicated several
times that the records should be produced. (Supra at 7-9) Plaintiff asked for and was given until
August 31, 2012, in which to produce the documents. (Supra at 9)

11

Following the June 13, 2012, conference, defendants were provided with four pages
responsive to this request—plaintiff’s transmittal letter to the clerk forwarding his petition for
reinstatement and a three-page notice of hearing. (See doc. #86 at 9 referencing doc. #85-27, Ex.
B, Nos. M000021 and M000022-24).
During the second conference on July 20, 2012, defense counsel noted that plaintiff had
only produced the notice of hearing and a cover letter forwarding his petition for reinstatement,
but not his petition for reinstatement.

(Doc. #50 at 3)

By that time, defense counsel had

contacted the grievance committee and had been advised that plaintiff had been provided with
more than 400 pages of documents.

(Doc. #50 at 3)

None of those documents had been

produced by plaintiff as of the July 20, 2012, telephone conference. (Doc. #50 at 4) The Court
again ordered plaintiff to produce these documents. (Supra at 6)
No further documents relating to the reinstatement petition or correspondence were
produced until August 31, 2012, when in response to the Court’s August 17, 2012, ruling,
plaintiff produced to defendants 231 pages of documents, M000330-560. (Doc. #86 at 12; see
doc. #85-32, Ex. D)

Defendants point out that when they compared those documents to the

index of documents set forth in the Grievance Administrator‘s Reinstatement Report—which
defendants obtained independently from the grievance commission and which plaintiff had failed
to produce—it was obvious that not only had plaintiff failed to produce the 20-page report itself,
he had also failed to produce more than one hundred pages of documents which were attached to
the report.

(Doc. #86 at 12)

The index of documents shows that a total of 385 pages of

documents were provided to plaintiff as attachments to the grievance commissioner‘s report.
(See doc. #85-32 at 20) Plaintiff, however, had provided less than 250 pages of documents to
defendants. (See doc. #85-32, Ex. D) The first 54 pages listed in the index of documents, which

12

were not produced by plaintiff, contained a recorded reinstatement interview of plaintiff given on
February 17, 2012. (Doc. #85-37, Ex. D)
It was later determined that in addition to the February 17, 2012, reinstatement interview,
hearings had been held on by the grievance panel on May 18, August 21, and September 5, 2012.
(Doc. #85-40 at 4) Exhibit indexes are noted to be attached to the hearings of May 18 and
August 21, 2012. (Doc. #85-40 at 3) The Report of the Tri-County Hearing Panel #81 notes that
“[p]etitioner and the Grievance Administrator each submitted numerous exhibits which are more
specifically described in the transcript.” (Doc. #85-40 at 5) It is unclear exactly what exhibits
were submitted by petitioner; however, during the May 18, 2012, hearing, plaintiff indicated that
he had satisfied the requirements for reinstatement and stated:
… I’ve done everything to request reinstatement properly, I submitted to Mr.
McGlinn all of the—I submitted the personal history affidavit along with a large
number of bank statements which were required and other information, I attended
that the date he requested a interview in front of a court reporter where he asked
me questions, I think it was for about an hour, hour and-a-half, answered all the
questions, I didn’t avoid any of the questions. He did ask me for some additional
bank statements on another account, I supplied those to him …
(Doc. #85-39 at M000647)(emphasis added) Defendants point out that plaintiff has not produced
any of the documents referenced in this recorded hearing (doc. #86 at 14), despite the Court
having ordered plaintiff to produce all documents sent or received from the grievance committee.
During his deposition, plaintiff acknowledged that he had not complied with the Court’s
order in connection with the first document request and that he had other documents that he had
received from the committee or the bar which he had not provided to defense counsel.

(Doc.

#85-17) On October 31, 2012, plaintiff filed a supplemental response to Document Request No.
1 of Defendants’ Revised First Request for Production of Documents to Plaintiff in which
plaintiff stated: “See doc #57-12, doc #57-14 and doc #57-15.

13

The Plaintiff’s investigation

continues.” (Doc. #85-18) However, the documents referenced were documents that defendants
had obtained independently and not as a result of plaintiff’s production efforts. (Doc. #86 at 13)
In the Court’s view, the reinstatement investigation of plaintiff was highly relevant and
discoverable since the only damages which plaintiff claims in this litigation are reputational.12
Plaintiff offered no reasonable excuse as to why he failed to produce all of the documents which
he sent to or received from the grievance commission. That plaintiff would now claim there was
no order requiring that he produce these records is further evidence of his complete disregard for
this Court’s orders as well as his discovery obligations.
B. Other Records
In the Court’s view, plaintiff’s explanation that financial records, such as those requested
in revised Document Request No. 16, were stored in a vacant home in Indiana and unlawfully
seized by the Postal Inspector seems so implausible as to be lacking credibility.

This is

underscored by the fact that banking and financial records were provided to the grievance
administrator, but not to defendants.
Defendants maintain that plaintiff’s actions in failing to produce financial records and
settlement agreements violated this Court’s orders as well as plaintiff’s discovery obligations and
also warrant dismissal of the action. The Court concludes that it need not address these issues in
the same detail as it has with respect to the discovery history connected with Document Request
No. 1 for the reason that plaintiff’s actions in connection with that document request are
sufficient to establish a willful and bad faith failure to comply with the Court directives.

12

Proof of actual reputational harm is an absolute prerequisite in a defamation action.
Johnson v. Allstate Indem. Co., 278 S.W.3d 228, 235 (Mo. Ct. App. 2009).
14

See

III. CONCLUSION
The Senior Counsel to the Grievance Commission issued a report on April 8, 2012, in
which he indicated that transcripts of hearings and exams taken as recently as April 10, 2012,
“show a continued pattern of Petitioner’s obstructionist and dissembling behavior towards the
court system.”

(Doc. #85-21)

A review of plaintiff’s court filings and statements in this case

demonstrates that this attitude has continued with respect to his discovery obligations here.
Based upon the entire record, the Court finds that plaintiff willfully and in bad faith failed to
produce all of the records responsive to Document Request No. 1, despite repeated orders and
directives by the Court to do so. Accordingly, it is
ORDERED that Defendants’ Motion for Sanctions (doc. #85) is granted.

Pursuant to

Fed. R. Civ. P. 37(b)(2)(A)(v), plaintiff’s amended complaint is dismissed with prejudice. It is
further
ORDERED that to the extent that plaintiff has not yet paid James Condry, plaintiff is
directed to pay his costs of the mediation before Mr. Condry in the amount of $500.00.

/s/ Sarah W. Hays___________
SARAH W. HAYS
UNITED STATES MAGISTRATE JUDGE

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